KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 382/2016

JUDGMENT DATED: 18.04.2023

(Against the Order in C.C. 287/2008 of CDRF, Kannur)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN              : PRESIDENT

SRI.RANJIT. R                                                                             : MEMBER

APPELLANT:

Dr. Jose Michael, Parayil Dental Clinic, Karuvachal P.O., 670 571.

                             (By Advs. Shyam Padman & S. Reghukumar)

                                                Vs.

RESPONDENT:

Puthanpurayil Auseppachan, S/o Chacko, Manikkal, Chapparapadavu P.O., Thadikkadavu, Thaliparamba Taluk.

(By Adv. E.V. Mohanan)

JUDGMENT

SRI.RANJIT. R: MEMBER

The opposite party has filed this appeal against the order dated 08.02.2016 in C.C. No. 287/2008 on the file of the Consumer Disputes Redressal Forum, Kannur (in short the District Forum).  The District Forum by its order directed the opposite party to pay a sum of Rs. 20,000/- as treatment expenses and Rs. 30,000/- as compensation along with an amount of Rs. 5,000/- as litigation costs to the complainant to be paid within 30 days, failing which the above amounts of               Rs. 20,000/- and 30,000/- would carry interest @ 12% per annum. 

2.  For the sake of convenience, the parties are referred according to their status/rank in the complaint.

3.  The case of the complainant in brief is that, on 20.11.2017 the complainant consulted the opposite party for tooth ache of his left third molar.  On that day the doctor prescribed some medicines.  Thereafter, as advised he again consulted the opposite party on 03.12.2007 and on that day the opposite party extracted the upper third molar teeth.  But the opposite party did not obtain consent of the complainant before extraction of the tooth.  Thereafter, due to severe pain the complainant consulted one Dr. Koonthanam at Alakode and as per his advice he consulted Dr. Thomas Sakaria of Kasthoorba Medical College (KMC), Mangalore.  Dr. Thomas Sakaria advised an operation for rectifying the defect of the treatment given by the opposite party.  But due to financial stringency he could not perform the surgery.  Later, he consulted the dentist at Pariyaram Medical College and was treated there as inpatient for 11 days.  He underwent surgery during this period.  Only after the surgery done at Pariyaram Medical College he could open his mouth.  Due to the negligence and deficiency in service on the part of the opposite party in extracting the third molar teeth, complainant suffered much hardships, mental agony, loss of money etc. Hence he filed the complaint. 

4.  Opposite party appeared and filed version contending that he had treated the patient in the prescribed manner as per the approved medical protocol. There is no laches, negligence or deficiency in service on his part.  According to him, the patient had undergone surgery at Pariyaram Medical College for a medical phenomenon called ‘Trismus’ which formed in lower jaw.  The opposite party has given treatment for upper jaw, which has no connection with the treatment of lower jaw.  Moreover, the treatment of lower jaw started after lapse of many months.  Under the above circumstances there was no deficiency and negligence on the part of the opposite party and the allegations leveled against him are without any basis.  Hence the complaint is to be dismissed. 

5.  Evidence on the part of the complainant consists of oral testimony of complainant as PW1 and that of his witness as PW2.  Exts. A1 to A14 were marked on his side.  Opposite party was examined as DW1 and his witness gave oral testimony as DW2.

6.  The District Forum after considering the evidence on record and hearing both parties held that there was negligence on the part of the opposite party in treating the complainant and thus passed the impugned order, which is under challenge. 

7.  The learned counsel for the appellant would contend that the complainant had consulted the opposite party on 20.11.2007 with complaints of pain on the upper left third molar.  On examination it was found that the third left upper molar was infected and the diagnosis was made as periodontitis.  The opposite party has prescribed antibiotics and analgesic to bring down the acute sign of infection and advised the complainant to come for extraction after 3 days.  But the complainant came only after 13 days, i.e; on 03.12.2007 for extraction.  The said upper third molar was extracted on 03.12.2007 after obtaining free informed consent, under local anesthesia.  The extraction was uneventful.  The opposite party has prescribed antibiotics and pain relievers and the complainant was asked to come for suture removal after a week.  The suture was removed on 10.12.2007.  An examination of the extraction site showed normal signs of healing and the condition of the complainant was far better.  He was prescribed anti inflammatory medicines to help the healing process.  The complainant again consulted the opposite party on 27.12.2007 with pain and swelling on the lower left third molar region.  The opposite party gave antibiotics and analgesic to bring down the infection and advised him to return for a review after 3 days.  But the complainant did not turn up thereafter.  The opposite party has given proper treatment and the alleged complications had nothing to do with the treatment given by the opposite party.  The complainant had later undergone treatment for Trismus occurred on account of space infection, which was caused independent of the treatment given by the opposite party and worsened on account of negligence, delay, default and failure on the part of the complainant in taking proper treatment and following medical advice.  The complications developed had no nexus with the treatment availed by the complainant from the opposite party.  The extracted socket had healed properly and there was no infection on account of the same.  The complainant has also admitted that there was no pain on the upper left molar jaw and that there was no problem in the extraction of tooth in the upper third molar done by the opposite party.  The opposite party has treated the complainant with care, caution and attention as per the universally accepted standard medical protocol.  The expert doctors ie; PW2 and DW2 had stated that there was no negligence on the part of the opposite party.  PW2 has not deposed deficiency in service on the part of the opposite party.  The complainant as PW1 during cross examination had categorically admitted that the pain had in fact subsided after the extraction of the offending tooth by the opposite party.  DW2 the expert also gave evidence to the effect that there is no negligence or carelessness in the matter.  The District Forum did not appreciate the evidence in the correct perspective.  The order rendered by the District Forum is on an improper appreciation of the evidence and the same is erroneous and unsustainable.  The District Forum ought to have appreciated the legal position that the burden to prove medical negligence with sufficient evidence including that of experts was on the complainant and that negligence has to be established and could not be presumed.  Simply because a patient has not favourably responded to a treatment given by a physician, the doctor cannot be held liable.  The complainant failed to prove and substantiate the allegations made by him before the District Forum.  For the above reasons, the appeal is to be allowed and the complaint is to be dismissed.  A number of decisions have also been relied upon by the counsel. 

8.  The learned counsel for the respondent contended that the opposite party did not take consent of the complainant before extraction of his wisdom tooth.  It is a settled position that taking consent is a mandatory procedure to be followed before extraction of the tooth. Admittedly no written consent was taken before extraction by the opposite party.  This is negligence on the part of the opposite party.  Further while extracting the third upper molar wisdom tooth hairline fracture happened on the left angle inside the mouth.  This fact is made mention in Exts. A8 and A13 medical records.  This is the reason why there occurred severe pain which continued even after many days and therefore the complainant was constrained to consult the doctor at Alakode and later consulted Dr. Thomas Sakaria and doctor at Pariyaram Medical College.  By that time he had difficulty in opening his mouth.  This tantamount to a phenomenon called Trismus.  The doctor at KMC advised him for surgery.  But due to financial constraints he could not do the surgery at KMC at that time.  Exts. A14 series medical bill shows that huge amount was spent for his treatment.  From the evidence, it is clear that complainant was suffering from severe pain which continued from 20.11.2007, the date of treatment started by the opposite party till 25.01.2008 the date of discharge from KMC Hospital.  It reveals that there was no change in the situation of the patient to the treatment given by the opposite party.  Ext. A6 shows that there was difficulty in opening the mouth even on 19.12.2007.  The same situation continued till 25.01.2008 as per Ext. A12.  Subsequent to that he approached the Pariyaram Medical College on 02.06.2008 and underwent surgery.  Exts. A7 and A11 are the treatment records regarding the treatment given to the complainant at Pariyaram Medical College.  In Ext. A8 and A13 medical records from Pariyaram Medical College mentioned about the hairline fracture inside the mouth on the left angle portion.  From the above it is clear that the pain of the tooth of the complainant for which he consulted the opposite party not only remained as uncured but it had shifted to severe level and later resulted in the Trismus.  From the overall evaluation of the documents and evidence, it is clear that the extraction of the third molar by the opposite party was not enough either to cure the disease or to release the pain.  Hence there is shortcoming in diagnosis and treatment given by the opposite party which amounts to deficiency in service and negligence.  Due to the negligence of the opposite party he suffered mental agony, pain and suffering and loss of earning for ten months.  Hence the counsel claims that the appeal is to be dismissed. 

9.  We have considered the contentions put forward by both counsel, at length and also the Lower Court Records.  The complaint is filed alleging medical negligence on the part of the opposite party in treating the complainant.  It is alleged that there was lack of consent for extraction of his upper third molar.  Further, on account of extraction there was severe pain in the mouth, which later developed into a condition known as ‘Trismus’.  It was cured only after the surgery done at Pariyaram Medical College in June 2008.  It is an admitted fact that complainant had consulted the opposite party on 20.11.2007 with complaint of pain in the upper third molar.  The opposite party has prescribed medicines since it was found that there was infection.  It is also admitted that he was advised to consult him after three days.  But the complainant consulted him only after 13 days i.e; on 03.12.2007 for extraction.  The said upper left third molar was extracted on 03.12.2007 and he was prescribed antibiotics and pain relievers.  He was advised to come for suture removal after a week.  On 10.12.2007 the suture was removed and the extraction site showed normal signs of healing.  It is also admitted that from 03.12.2007 till 10.12.2007 there was no problem or pain to the complainant till the sutures were removed.  Further, it is admitted that the complainant consulted the opposite party on 27.12.2007 with pain and swelling on the lower left third molar.  Since there was infection, the opposite party has given antibiotics and analgesic to cure the infection.  The phenomenon of trismus happened only at a later stage. 

10.  To substantiate that there is medical negligence one must prove that he had suffered injury as a result of substandard care done by the dentist.  In other words, the complainant must be able to prove that the opposite party did not provide standard level of care expected from a dentist and due to his failure he sustained serious injury.  One of the allegations leveled against the opposite party is that he did not obtain consent of the complainant before extraction of his wisdom tooth.  It is an admitted fact that no written consent was obtained before the extraction.  The specific contention of the opposite party regarding this fact is that there was implied consent.  He had conducted extraction of the wisdom tooth with implied consent of the complainant with a view to cure the disease.  The Hon’ble Supreme Court in Samira Kohli Vs. Dr. Prabha Manchanda and another held that “informed consent of the patient was necessary for surgical procedure involving removal of reproductive organs.  Consent given for diagnostic surgery cannot be construed as consent for performing additional or further surgical procedure-without the specific consent for such additional or further treatment.  Consent can be implied in some circumstances from the action of the patient.  For example, when a patient enters a Dentist’s clinic and sits in the Dental chair, his consent is implied for examination, diagnosis and consultation.  Except where consent can be clearly and obviously implied, there should be express consent.  It is quite possible that if the patient had been conscious, and was informed about the need for the additional procedure the patient might have agreed to it.  It may be that the additional procedure is beneficial and in the interests of the patient”.  Here it can be seen that the patient came with pain in the upper molar area.  It is admitted that the doctor has stated that extraction of third molar is the only option to cure the problem of the patient.  The patient agreed for the same and it was with his implied consent only, the doctor had extracted the third molar.  It is a simple procedure and hence according to the doctor /opposite party no written consent was taken.  The Professor of the Calicut Dental College who gave evidence as DW2 categorically stated that in Dentistry when a patient comes and sits in the dental chair before a doctor, it is treated as implied consent.  Only for surgery the doctor took written consent.  In minor extraction there is no need to take written consent.  But for extraction of tooth written consent is not mandatory.  From the above it is clear that written consent is not mandatory and that implied consent is only necessary for extraction of the tooth.  The complainant has no case that implied consent was not given.  If only a written consent is mandatory for extraction of the tooth, then only it can be stated that there is violation of medical ethics and law.   Here implied consent is taken before extraction.  Therefore it cannot be stated that there was negligence on the part of the dentist/opposite party in not taking the written consent before extraction of the third molar.

            11.  The next question is whether there was negligence or whether sufficient care and caution was taken by the opposite party while extracting the third molar of the patient.  To prove the case that there was negligence on the part of the opposite party, the complainant has produced Exts. A1 to A14 documents.  Exts. A5 to A14 are the medical records.  Ext. A5 is the treatment record issued by the opposite party to the complainant for the consultation done at opposite party’s clinic.  The exhibit shows that the patient consulted the opposite party on 20.11.2007 and since there was infection in the upper molar he was given antibiotics for healing and that the extraction of the third molar was done on 03.12.2007.  Further sutures were removed on 10.12.2007. The complainant then consulted the opposite party on 27.12.2007.  On 27.12.2007 opposite party found that there was infection on the lower jaw and the complainant was given antibiotics and analgesic to bring down the infection.  Thereafter the complainant did not consult the opposite party.  Ext. A6 is the treatment record of Pariyaram medical college.  It shows that the complainant consulted the dentist at Pariyaram medical college on 19.12.2007.  He was having pain in left third lower molar i.e; palable tender sub mandibular and there was difficulty in opening the mouth for last two days, ie; from 17.12.2007.  From this record it is clear that there was no problem to the complainant from 10.12.2007, the date on which the sutures were removed till 17.12.2007.  In Ext. A6 it is noted that there is healing of extraction socket of upper molar.  In Pariyaram Medical College he was given medicines to relieve the pain and was advised to consult after 3 days. The complainant consulted the dentist at Pariyaram Medical College after 7 days i.e on 26.12.2007.  He was advised for soft diet and also asked him to continue the same medicines for three more days.  However, on the very next day that is on 27.12.2007 the complainant consulted the opposite party again, on account of pain and swelling on the left lower molar.  Since there was infection in the lower molar, the opposite party prescribed antibiotics and analgesics to bring down the infection and asked the complainant to consult him after three days.  But the complainant did not consult the opposite party thereafter.  Then the complainant consulted the doctors at KMC Hospital on 22.01.2008.  The treatment record of KMC Hospital is marked as Ext. A12. From Ext. A12 it is noted that he was admitted for trismus secondary space infection of sub mental and submandibular infection, that is; infection in the lower molar.  Trismus commonly referred to as lockjaw of tight jaw, happens for many reasons.  Trismus can arise after any oral surgery, but sometimes seen after the extraction of the wisdom teeth, especially the lower wisdom teeth or it can occur due to inflammation of the teeth.  Trismus causes pain in the jaw joints and surrounding muscles.  If there is infection around the mouth it can cause Trismus.  Here the patient was admitted for trismus secondary space infection.  The sub mandibular space infection is a bacterial infection on the floor of the mouth.  Bacteria can spread from an infected lower tooth to the tissues under and around the tongue. People with poor dental hygiene are prone to this infection.

12.  It is noted that after 27.12.2007 when he consulted the opposite party for infection in the lower jaw and was given medicines for infection, he did not turn up for consultation with the opposite party even though he was advised to consult him after three days.  The complainant did not consult any doctor for about one month.  He consulted dentist at KMC only on 22.01.2008.  From 27.12.2007 till 22.01.2008 he never consulted any doctor.  By the time he consulted doctors at KMC, there occurred a condition called Trismus secondary infection.  He was treated there for Trismus secondary infection from 22.01.2009 till 25.01.2009 (Ext. A12.)  Thus it is clear that Trismus happened to the complainant was due to the infection in the lower jaw and not due to the extraction of the upper molar done by the opposite party.  Complainant who was examined as PW1 deposed that no problem in the mouth after the extraction of third molar i.e on 03.12.2007 till 17.12.2007.  He later consulted the doctors at Pariyaram Medical College on 19.12.2007 as per Ext. A6.  Ext. A6 also shows that there was healing of extraction socket.  The infection trismus happened due to the infection of lower jaw for which the opposite party is not at all responsible.  After the treatment at KMC from 22.01.2008 till 25.01.2008 the complainant did not consult any doctor for about six months.  Later, on 02.06.2008 he again consulted doctors at Pariyaram Medical College and he was admitted there for surgery for treatment of Trismus.  Operation was done there on 04.06.2008.  The expert doctor Sony Jacob at Pariyaram Medical College who treated him from 02.06.2008 was examined as PW2.  He stated that when he examined the patient, healing of the extraction socket was complete and there is no sign of Trismus as per Ext. A12.  He further stated that he has done the correction procedure for trismus on 04.06.2008 and that it is not on account of gum infection stated in Ext. A5.  He had also categorically stated that there was no negligence on the part of the opposite party.  Another expert doctor Manoj Joseph Michael of Govt. Dental College, Calicut who was examined as DW2, as a witness of the opposite party, has opined that extraction of teeth done on 03.12.2007 by the opposite party was as per universally accepted dental protocol as the patient was periodentally affected.  He also stated that as per Ext. A6 i.e; outpatient record of Pariyaram Medical College dated 19.12.2007 it is recorded that earlier extracted socket was healing and that in Ext. A7 outpatient record of Pariyaram Medical College dated 18.06.2008 there was nothing on record regarding complication due to extraction of the tooth by the opposite party.  As per Ext. A8 the discharge card issued by Pariyaram Medical College for admission from 03.06.2008 till 12.06.2008 states that the patient was diagnosed as Trismus space infection.  In Ext. A8 document also it is stated that the healing of extraction socket was complete.  It indicates that there was no complication or problem with regard to the extraction of the upper tooth.  The expert doctor has also categorically stated that space infection noted in Ext. A8 discharge card cannot be due to the earlier extraction since it is seen after around six months.  During cross examination, DW2 the expert doctor has stated that as per Ext. A6 the patient was having restriction in opening his mouth and there was swelling.  But the expert has categorically stated that if the infection was due to the extraction, the wound would not have healed.  In Ext. A6 it is noted that the wound had healed and there was no problem with the wound.  He further stated that Trismus is the inability to open the mouth on account of muscles spasm or rigidity.  Mandibular muscles are completely connected with lower jaw.  Trauma or infection to the muscles causes trismus.  Extraction of upper third molar will not cause infection to these muscles or trismus.  Ext. A12 discharge summary at KMC Hospital for treatment from 22.01.2008 to 25.01.2008 would indicate that Trismus or complication had been caused during the previous two weeks.  If it was on account of tooth extraction done on 03.12.2007 it would have been there, after three or four days.  Here, admittedly there was no problem till 17.12.2007.  In Ext. A12 it is also noted that there was healing of socket at the upper left molar. 

13.  From the testimony of the above expert doctors, it is clear that there was no negligence on the part of the opposite party doctor in the extraction of the upper third molar as alleged by the complainant.  Dr. Sony Jacob of Pariyaram Medical College who had done the surgery on 04.06.2008 to cure Trismus has stated that there was no problem with the extraction of the tooth done by the opposite party and that the healing of extraction socket was complete.  Nothing was brought out with regard to any negligence on the part of the opposite party.  Both the expert doctors have ruled out any negligence on the part of the opposite party in the extraction of the upper left third molar as alleged by the complainant.

14.  The other allegation is with regard to the hairline fracture stated in Exts. A8 & A13.  According to the learned counsel for the complainant hairline fracture noted in Exts. A8 and A13 also accounted for Trismus.  Hairline Fracture is seen noted inside the mouth on the left angle portion.  Ext. A8 is the discharge summary of the Pariyaram Medical College for the treatment done on 02.06.2008 and Ext. A13 is the treatment certificate issued by Pariyaram Medical College from 02.06.2008 to 12.06.2008.  It is stated in these documents that there was a hairline fracture.  It is stated that in Ext. A8 they noted surgery for trismus and that they noticed hairline fracture on the left angle of the lower region on the same day and that the fracture was fixed using stainless steel plates.  Ext. A13 states that hairline fracture of left angle was completed on the same day.  Ext. A8 and A13 documents are after about six months from the date of extraction of the third molar of the upper jaw by the opposite party.  It is seen that the complainant had consulted many doctors for treatment, but no doctor had found any hairline fracture.  The complainant had consulted the doctor at Pariyaram Medical College on 19.12.2007 and they also did not note any fracture.  He was also admitted and treated for trismus for space infection at KMC from 22.01.2008 till 25.01.2008.  They also did not found any fracture.  From the above it can be concluded that hairline fracture did not happen on account of tooth extraction done by the opposite party.  Hence it is clear that Trismus was not on account of hairline fracture as stated by the District Forum. 

15.  In the above circumstances, it has to be concluded that the complication that developed into trismus has no nexus to the treatment availed by the complainant from the opposite party.  The extracted socket had healed properly and there was no infection on account of the same.  The complaint of pain on the upper left third molar region had admittedly subsided consequent to the extraction. Had the complainant availed the medical advice and treatment properly the alleged complication could have been avoided.  The available evidence clearly established that there was no negligence or deficiency on the part of the opposite party.  The District Forum erred in finding that there was negligence on the part of the opposite party, since there is no positive evidence suggesting negligence or deficiency in service on the part of the opposite party.  Expert doctors who gave evidence as PW2 and DW2 also specifically stated that there was no negligence or deficiency in service on the part of the opposite party.  It is proved and established that the opposite party has treated the complainant as per the universally accepted standard dental protocol and hence the order of the District Forum is wrong and is liable to be set aside.  We do so. 

In the result, the appeal is allowed and the complaint C.C. No. 287/2008 stands dismissed.  Parties to suffer their respective costs.

Refund the amount of statutory deposit made by the appellant at the time of filing the appeal, on proper acknowledgement.     

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JUSTICE K. SURENDRA MOHAN  : PRESIDENT

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                                                                   RANJIT. R                      : MEMBER

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